The Coming Copyright Clash in Higher Education

Higher education finds itself in the crosshairs of American society, and the primary focus is on the debt graduates are incurring in exchange for a college degree. There was once a time where this inspection and scrutiny was reserved for the “other” part of higher education: for-profit colleges like Strayer, Kaplan and the University of Phoenix. Those days are over. Now everyone – citizens, elected officials, and the press – are questioning the intents and missions of “reputable,” non-profit institutions, including questioning why they are authorizing salaries of $1 million or more for their presidents and chancellors.

The issue is so compelling that The Gray Lady, the venerable New York Times, has launched a new online series called “Degrees of Debt,” which purportedly examines “how college presidents are recognizing that they must handle education costs through methods other than tuition increases.”

There are a lot of things that go into calculating college tuition. Buildings must be built and maintained, lights need to come on, and professors need to be paid. In fairness, many colleges routinely offer various financial aid packages they hope will make attendance financially accessible. But the discounts can go only so far: for the most part, college is a “cash and carry” proposition. Therefore, tuition often is the main – sometimes the sole – source of a college’s income. Most schools pay all their costs from that sole stream of tuition income.

One other significant cost colleges and universities incur is the cost of scholarly publication. This cost manifests itself most notably through electronic resources that represent the publication and codification of knowledge.

The Cost of Scholarly Publication

The scholarly publication business process begins with a system – fully supported by higher education institutions – that demands “high impact” publication as a condition of achieving the holy grail of academic tenure. “High impact” does not mean acclaim, or status, or even a mention in The Gray Lady (although, increasingly, that helps). Instead, it means that the academic work must be published in a very specific, narrow set of journals. These titles vary by discipline, but everyone in the discipline can identify them.

Let’s be clear: this is a model colleges and universities impose upon themselves. By now, there are many blog posts that are as empirically rigorous as published journal articles; therefore, journals no longer have a monopoly on academic rigor. Further, scholarship, regardless the rigor level, often has little to do with effective teaching – and the quality of the teaching is a reason colleges and university use to justify high tuition prices. But blog posts and teaching are not the route to tenure. Publication, in specific journals that some influentials consider “high impact,” is the route to tenure.

Many of these “high impact” journals, once independent, have been absorbed into larger, multinational, publicly-held corporations. In that absorption, these journals’ primary purpose underwent an important evolution. Instead of knowledge dissemination, profit became the journals’ primary purpose. These profit pressures have led to a steady increase in subscription rates over the past three decades. In some cases, the subscription increases have been so steep that institutions, through their libraries, have chosen to cancel the subscriptions.

The act of cancellation is anathema to higher education, since institutions long have prided themselves on having access to and preserving the entire scholarly record. Not some of it – not just in subjects or specialties of certain professors or colleges – all of it. Yet in April 2012, a faculty advisory council to the Harvard University Library, one of the biggest and most well-funded academic library systems in the world, concluded “major periodical subscriptions, especially to electronic journals published by historically key providers, cannot be sustained: continuing these subscriptions on their current footing is financially untenable. Doing so would seriously erode collection efforts in many other areas, already compromised.”

Work Made for Hire in Higher Education

Here is the dirty little secret no one in higher education wants to acknowledge: the entire system of scholarly publication exists because colleges and universities fail to exercise the work made for hire doctrine. Under U.S. copyright law, the work made for hire doctrine essentially says that where an employee prepares a work within the scope of his or her employment, the employer – not the employee – will own the copyright in that work. Under this conceptual definition, there is no reason why colleges and universities should not universally own the copyright rights in a professor’s research and scholarship. That many do not simply is a matter of choice, as codified through institutional policy.

Therefore, most American professors end up owning the copyright rights to their research and writings, and this category customarily has been defined broadly enough so that it excludes only works that a faculty member prepares in an administrative capacity (such as committee work product). Here is where things get tricky, though. The faculty member, who has the copyright and wants tenure, must publish in certain “high impact” journals. When he publishes in “high impact” journals, he gives away that copyright as a condition of publication. When he gives away that copyright as a condition of publication, the journal publisher owns the article. When the journal publisher owns the article, it now owns the exclusive in that article. When the publisher owns the exclusive in the article, it names whatever price it wants for subscribers to access that article.

Increasingly, institutions are saying “Don’t pay whatever price a journal wants for access to an article.” At the same time, though, the institutions have changed nothing in their tenure criteria so that scholarship outside of “high impact” journals and teaching count as much toward a favorable tenure recommendation as publication in a “high impact” journal.

This, to put it mildly, puts college administrators in a pickle.

The Policy Change

The faculty advisory council at Harvard recommended researchers and faculty “move [scholarly] prestige to open access” as a way to avoid paying “whatever price a journal wants for access to an article.” That recommendation, though, underestimates the vast economic and labor costs associated with building and maintaining a current scholarly record, as well as the costs associated with backfilling the historic academic record. Perhaps Harvard can do this, but most universities do not have Harvard’s resources. The recommendation also ignores reengineering the tenure system, which is, ultimately, the root of this conundrum.

Colleges and universities, however, have a major trump card to play: they can reverse their longstanding custom against claiming work made for hire status. Instead, they could claim copyright ownership in scholarship as a way to avoid the scholarly publications crisis, and at once, justify this policy change as a way to cut the costs of education. University professors surely would scream bloody murder. This group, though, has been virtually silent concerning recent copyright battles, and professors are not a particularly sympathetic bunch these days. (Few in the media, for example, would sympathize with professors maintaining copyright in their work when reporters routinely cede copyright in their work to their own employers.) While changing institutional policy is not without peril, the peril is of the sort many institutions can manage because it is tied to a paycheck. By imposing work made for hire rules, employing colleges would merely substitute for the publishers, and take steps to avoid having to buy back their own employees’ work product.

Reversing the policy on work for hire in higher education is a draconian step. Given the economics and optics of the current crisis in higher education, however, it is increasingly likely to happen.